Calder, In re, F-253
| Decision Date | 11 July 1990 |
| Docket Number | F-253,No. 890113,F-274,890113 |
| Citation | 795 P.2d 656 |
| Parties | In re J. Richard CALDER,& |
| Court | Utah Supreme Court |
Christine A. Burdick, David E. Leta, Salt Lake City, for Utah State Bar.
Daniel R. Boone, John T. Anderson, Salt Lake City, for J. Richard Calder.
This is a disciplinary proceeding instituted by counsel for the Utah State Bar (the Bar) pursuant to rule VIII(e) of the Rules of Discipline. In February of 1989, a disciplinary hearing panel (the Panel), after five days of evidentiary hearings, recommended that J. Richard Calder be disbarred from the practice of law. The Board of Bar Commissioners (the Board) adopted the recommendation of the Panel the following month. Calder filed an objection with the Board, and a hearing was conducted by a three-member panel of the Board. That panel recommended to the Board that the earlier recommendation of disbarment be adopted, and the Board accordingly entered an order. Calder appeals from the Board's order and from the findings of fact, conclusions of law, and recommendation of discipline by the Panel. We affirm.
Calder's arguments in this case are set forth at great length in his brief, but essentially consist of the following: (1) the Panel improperly considered facts and issues beyond the scope of the complaints filed against him by the Bar; (2) the Panel mistakenly relied on an erroneous interpretation of a Utah statute in assessing the damage done by his misconduct to one of his clients; (3) the Panel's findings of fact, many of which are not supported by clear and convincing evidence and are erroneous, deserve little or no deference from this court; and (4) the Panel's recommendation of disbarment was disproportionate to Calder's misconduct and inadequately accounted for mitigating factors proved by him.
This court has reviewed more than one thousand pages of hearing transcript setting forth the evidence of Calder's misconduct, but we do not consider it useful to recount the fairly complex facts underlying the Panel's findings. Instead, we will clarify the scope of review and briefly address Calder's arguments. He claims that because this court must exercise ultimate constitutional authority with respect to attorney discipline, we should not accord any deference to the factual findings and disciplinary recommendations of the Bar. We reject that claim and reaffirm the standard of review set forth in In re Hansen, 584 P.2d 805 (Utah 1978):
We have reviewed the foregoing matter in awareness of our previous declarations of this Court that, though it is the prerogative and responsibility of the court to make the findings and orders in such matters, we will nevertheless regard the findings and recommendation of the Commission as advisory, and will accord them some degree of indulgence, and be inclined to act in accordance therewith unless it appears that the Commission has acted arbitrarily or unreasonably.
Id. at 807 (citations omitted).
To clarify the foregoing language, we treat factual findings by fact-finding entities within the Bar much the same as we treat such findings from administrative agencies and will sustain them unless they are unsupported by the evidence and are arbitrary and capricious. With respect to recommendations for discipline, we treat them as "advisory" in the sense that they are not and cannot be binding on this court. If they are unreasonable, we will reject them; if they are reasonable, we will accept and approve them.
In the present case, our...
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...obligations of attorneys. Id. (citations omitted) (quoting In re Bridwell, 25 Utah 2d 1, 474 P.2d 116, 116 (1970)); accord In re Calder, 795 P.2d 656, 657 (Utah 1990); In re Hansen, 584 P.2d 805, 807 1978). Courts in some other states have adopted a similar standard of review in judicial mi......
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